Three United Kingdom-based nonprofit organizations and a German Internet activist have filed a lawsuit against the British government at the European Court of Human Rights (ECHR), arguing that the UK's electronic spying network is illegal.

Documents provided by former National Security Agency contractor Edward Snowden have shown that the UK’s Government Communications Headquarters (GCHQ), the sister organization to the NSA, has been one of the most prominent players in digital surveillance, particularly of European traffic.

The lawsuit was filed Thursday at the ECHR in Strasbourg, France by Big Brother Watch, Open Rights Group, English PEN, and Constanze Kurz, who has been a longtime spokesperson for the Chaos Computer Club, a well-known German hacker group.

“Beyond effective legal scrutiny”

In the 67-page filing, the appellants argue that the communications interception is in direct violation of Article 8 of the European Convention of Human Rights, Europe’s rough analog to the Fourth Amendment to the US Constitution, which protects against unreasonable searches and seizures.

Unlike the Fourth Amendment, however, Article 8 specifically carves out a national security exception.

It states:

Article 8 – Right to respect for private and family life

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

In their filing, the appellants argue that because the newly revealed data collection is “indiscriminate,” it cannot possibly be “subject to any sufficiently precise or ascertainable legal framework and is beyond effective legal scrutiny.”

More precisely:

In effect, the power to obtain and use external communications data by means of intercept is unfettered in published law, as long as it is thought broadly to be in the interests of [national] security or other of the specified generic purpose. There are no adequate criteria by which a court of tribunal could assess the legality of use of any particular intercept material even if the courts had jurisdiction to do so, which they do not.

Holding the powerful accountable

Nick Pickles, director of Big Brother Watch, said in a statement that British laws have been interpreted far more broadly than how they originally were intended.

“The laws governing how Internet data is accessed were written when barely anyone had broadband access and were intended to cover old-fashioned copper telephone lines,” he said. “Parliament did not envisage or intend those laws to permit scooping up details of every communication we send, including content, so it’s absolutely right that GCHQ is held accountable in the courts for its actions.”

The court, which is composed of 47 judges from each of the member states of the Council of Europe, may take months (or years) to render a decision. However, this case likely will be heard by a smaller committee composed of three or seven judges. The ECHR’s own flow chart shows a long process (PDF) that likely awaits this application, along with the 50,000 other new applications that it receives each year.

“The timetable is for the court, but I would hope for the case to be formally communicated to the UK within a couple of months,” Daniel Carey, the chief solicitor in the case, told Ars. “Thereafter, they are likely to have two to three months for their response before the court considers next steps. The quickest case I have done in Strasbourg was determined in 14 months, so I hope that we may get a judgment next year.”

28 Reader Comments

May the European court be more tempered and reasonable in their interpretation of the national security exception than the United States courts have been with their interpretation of a non-existent national security exception.

A heads-up for non-european readers: the European Convention of Human Rights has a broader scope and is a separate entity from the European Union. For a not so simple (and possibly outdated) diagram of supranational entities in Europe, here's a handy Venn diagram:

A heads-up for non-european readers: the European Convention of Human Rights has a broader scope and is a separate entity from the European Union. For a not so simple (and possibly outdated) diagram of supranational entities in Europe, here's a handy Venn diagram:

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

This is the part where I would say, "See? The British government will simply argue that what they did adhered to the letter of the law and what they did WAS necessary for public safety. If they had a Constitution like the U.S., then at least there'd be a chance to strike down said 'lawful' behavior as unconstitutional."

But the Fourth Amendment of the U.S. Constitution doesn't seem to be worth the paper it's printed on these days, so, yeah...

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

This is the part where I would say, "See? The British government will simply argue that what they did adhered to the letter of the law and what they did WAS necessary for public safety. If they had a Constitution like the U.S., then at least there'd be a chance to strike down said 'lawful' behavior as unconstitutional."

But the Fourth Amendment of the U.S. Constitution doesn't seem to be worth the paper it's printed on these days, so, yeah...

It doesn't matter whether it is written or not, it will always end up getting interpreted to suit the needs of those in power. And with enough time and patience, even written constitutions get altered to suit those needs further...

May the European court be more tempered and reasonable in their interpretation of the national security exception than the United States courts have been with their interpretation of a non-existent national security exception.

The key phrase is here probably "except such as is in accordance with the law". The Court has ruled previously that the Uk had not made (enough) explicite in law when and why they limited the rights of citizens (not the right to privacy, but one of the other rights, which all have an exception clausule like this). The UK is generally pretty bad at this, they prefer to just go ahead, and be checked after the fact on a case by case base (if at all). This fits with their jurisprudence system, but clashes with the system the other European countries use.

Only after ruling on the way the UK law does or does not cover the exeptions, will the Court look to the "and only in sofar as needed" part to see if the rules such as they are, are not overly broad or excessive.

As this was filed at Strasbourg obviously the challenge is based on the ECHR, however the article makes no mention of any efforts previously undertaken within the UK. Before getting to Strasbourg I would have thought there would have to have been challenges under UK law.

The HRA 1998 enshrines ECHR in UK law, but it is generally existing legislation that ensures the UK adheres to the ECHR. Indeed by the time HRA came about ECHR was in fact exceeded in some areas, for example by PACE 1984.

In this case there's surely been some challenge under RIPA? The issue here is that of collateral intrusion, and any RIPA authorisation would have to take account of this. If this is the case then Article 8, a qualified right, will already be justifiably limited under UK law and the ECHR is unlikely to consider any exceptions.

I'm glad to see something being done, although the EU has known for many years that GCHQ are in the business of industrial espionage (despite their "early warning centre" tag) and nothing appears to have been done since the 'revelation' which doesn't give me much hope of a ruling in favour of Article 8.

The current Home Secretary, Theresa May was thwarted numerous times in her attempt to extradite Abu Qatada, because of this embaressment she has vowed to see the Human Rights Act ended in the UK, yet there is virtually nothing in the media about how this would affect citizens.

So hopefully this legal action gets somewhere and even more hopefully, the conservatives are not voted back into power come 2015, failing that; the EU rules that for the UK to remove itself from the Human Rights Act means complete isolation from all countries that make up the EU.

This isn't much of a story - a bunch of activists taking a stand on something they don't like. News at 11. Er, I mean on Ars...

EU governments are well known for doing what the fuck they please, especially including industrial and political espionage, the UK is hardly exceptional in this regard. My money's on France being the worst offender but who knows.... I seriously doubt this court action will change a thing, even if it succeeded. But it won't succeed, because the ECHR cedes to national governments the right to determine for themselves what espionage they need to carry out and for what reasons. I find it hilarious that even 'moral' reasons can stand as justification!

And, once again, it is NOT NEWS that GCHQ and it's EU counterparts all spy on one another's countries and have being doing so continuously for hundreds of years.

As this was filed at Strasbourg obviously the challenge is based on the ECHR, however the article makes no mention of any efforts previously undertaken within the UK. Before getting to Strasbourg I would have thought there would have to have been challenges under UK law.

I think it's being filed regarding interception of EU-wide traffic, not just traffic from UK citizens. Hence, European court.

what the UK GCHQ has been up to is almost a carbon copy of the USA NSA. it has only happened because Cameron has this 'special relationship' with the USG, ie, he's shit fucking scared that the USA will do something against the UK or someone else will and the USA wont back them.i reckon it's because the USA needed a 'spy in the EU camp and the UK has been stupid enough to do it! i dont understand why a nation that is almost totally reliant on other nations just a few miles away, would piss them off in favour of a nation that's thousands of miles away and wouldn't come to help anyway! gas, electricity, food almost all tech spares and replacements come from EU countries. the UK would only last about a week without gas, and a fortnight without food. even worse, without water, it wouldn't last a couple of days, especially having pissed Scotland off as well to the point of wanting to leave the UK. is there anyone in charge of the UK that has any freaking sense at all??

what the UK GCHQ has been up to is almost a carbon copy of the USA NSA. it has only happened because Cameron has this 'special relationship' with the USG, ie, he's shit fucking scared that the USA will do something against the UK or someone else will and the USA wont back them.i reckon it's because the USA needed a 'spy in the EU camp and the UK has been stupid enough to do it! i dont understand why a nation that is almost totally reliant on other nations just a few miles away, would piss them off in favour of a nation that's thousands of miles away and wouldn't come to help anyway! gas, electricity, food almost all tech spares and replacements come from EU countries. the UK would only last about a week without gas, and a fortnight without food. even worse, without water, it wouldn't last a couple of days, especially having pissed Scotland off as well to the point of wanting to leave the UK. is there anyone in charge of the UK that has any freaking sense at all??

I think you have an incredibly simplistic view on how international relations works. You don't simply embargo a country over relatively petty issues like this. Especially as you said yourself countries that are buying your goods.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

I think they forgot "or for the gratification of the government's whims".

A heads-up for non-european readers: the European Convention of Human Rights has a broader scope and is a separate entity from the European Union. For a not so simple (and possibly outdated) diagram of supranational entities in Europe, here's a handy Venn diagram:

what the UK GCHQ has been up to is almost a carbon copy of the USA NSA. it has only happened because Cameron has this 'special relationship' with the USG, ie, he's shit fucking scared that the USA will do something against the UK or someone else will and the USA wont back them.i reckon it's because the USA needed a 'spy in the EU camp and the UK has been stupid enough to do it! i dont understand why a nation that is almost totally reliant on other nations just a few miles away, would piss them off in favour of a nation that's thousands of miles away and wouldn't come to help anyway! gas, electricity, food almost all tech spares and replacements come from EU countries. the UK would only last about a week without gas, and a fortnight without food. even worse, without water, it wouldn't last a couple of days, especially having pissed Scotland off as well to the point of wanting to leave the UK. is there anyone in charge of the UK that has any freaking sense at all??

This is quite possibly the most naive expression of how international relations works that I've ever seen. Bonus points for the bizarre suggestion that the UK worry that it's intelligence activities might put it's water supply at risk.

what the UK GCHQ has been up to is almost a carbon copy of the USA NSA. it has only happened because Cameron has this 'special relationship' with the USG, ie, he's shit fucking scared that the USA will do something against the UK or someone else will and the USA wont back them.i reckon it's because the USA needed a 'spy in the EU camp and the UK has been stupid enough to do it! i dont understand why a nation that is almost totally reliant on other nations just a few miles away, would piss them off in favour of a nation that's thousands of miles away and wouldn't come to help anyway! gas, electricity, food almost all tech spares and replacements come from EU countries. the UK would only last about a week without gas, and a fortnight without food. even worse, without water, it wouldn't last a couple of days, especially having pissed Scotland off as well to the point of wanting to leave the UK. is there anyone in charge of the UK that has any freaking sense at all??

Go read up on the UKUSA Agreement if you want to know the truth. Or... just keep believing this drivel.

Sadly, I doubt the UK (or most other countries) is going to let an international panel tell it what constitutes "national security".

It is not an "international panel". It is the highest court in the Union, of which the UK is a signatory and a part. There are two courts: the Supreme Court equivalent, the Court of Justice of the European Union, which is the highest EU court. The UK is bound by its decisions.

The CoJEU voluntarily defers to the ECHR because there is a treaty stipulation that all EU members must ratify the European Convention of Human Rights, of which the ECHR is the highest arbitrator. The UK is bound to the CoJEU, which is bound to the ECHR. The UK is also bound by treaty to follow the ECHR in a separate arrangement through the Council of Europe. In other words, the UK can't disregard the court. It must do what it says.

So, it's not like belonging to the UN. There are legal and administrative requirements here. The UK must follow the union law. This is why Theresa May, the Home Secretary, is crying so often because the ECHR makes her government act like humans and not creeps in the field of human rights, such as forbidding the UK from deporting an islamist to the Jordanian torture chambers.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

This is the part where I would say, "See? The British government will simply argue that what they did adhered to the letter of the law and what they did WAS necessary for public safety. If they had a Constitution like the U.S., then at least there'd be a chance to strike down said 'lawful' behavior as unconstitutional."

But the Fourth Amendment of the U.S. Constitution doesn't seem to be worth the paper it's printed on these days, so, yeah...

It doesn't matter whether it is written or not, it will always end up getting interpreted to suit the needs of those in power. And with enough time and patience, even written constitutions get altered to suit those needs further...

As this was filed at Strasbourg obviously the challenge is based on the ECHR, however the article makes no mention of any efforts previously undertaken within the UK. Before getting to Strasbourg I would have thought there would have to have been challenges under UK law.

I think it's being filed regarding interception of EU-wide traffic, not just traffic from UK citizens. Hence, European court.

Since the ECHR is not a court of the European Union, and since admissibility hinges upon local remedies having been exhausted, this should not matter.